Is this then a done deal? Or can the Supreme Court somehow decide there was a half-sentence in a Federalist Paper which argued the opposite and invalidate the ruling?
This is a ruling by a District Court. It could be appealed to the Circuit Court, and then to the Supreme Court.
In the federal court system, District Court decisions are not binding precedent. Circuit Court decisions bind the District Courts in their circuit, and Supreme Court decisions bind all lower courts.
This District Court is in the Second Circuit. Another District Court in the same Circuit made a similar decision in US v. Smith, but the Second Circuit Court has not yet ruled on warrantless border searches of cell phones. Several other Circuit Courts have, however, and their rulings were all opposite of this one: the First Circuit in Alasaad v. Mayorkas; the Fifth Circuit in US v. Castillo; the Seventh Circuit in US v. Wanjiku; and the Ninth Circuit in US v. Cano.
In short: this decision is not binding precedent, and a substantial amount of binding precedent exists in the opposite direction within other circuits.
Exactly this. (and for those unfamiliar with the terms, in federal courts "Circuit Courts" are the first level of appeals courts, which both sides have a right to be heard in, followed by the Supreme Court which is discretionary and only takes on big cases)
When there is a "circuit split" like this, with different appellate courts going in opposite directions you are almost 100% guaranteed SCOTUS has to step in to fix it.
I don't know the outcome of this, as I've not studied border searches in years, but while SCOTUS went in the favor of defendants on prior search cases (e.g. Riley v. California, 573 U.S. 373, cellphone searches on person during arrest; Carpenter v. United States, 585 U.S. ___ (2018), cellphone GPS logs from carrier; United States v. Jones, 565 U.S. 400 (2012), GPS attached to car), the court has changed to the right, which generally (but not always) means less defendant-friendly, more government-friendly.
If I had to wager, SCOTUS will uphold warrantless border searches.
SCOTUS doesn't always make shitty decisions. Sometimes dozens of lower courts will all make a shitty decision and then it gets to SCOTUS and they somehow use their greater resources to produce a better decision contrary to everyone's expectations.
A textualist interpretation of the constitution would likely take a very dim view of the federal government trying to stretch its powers and get around the Fourth Amendment. I don’t think we have much to worry about on this topic from the current court.
For the Hacker News members who are reflexively downvoting my comment, presumably for political reasons, I refer you to Riley vs. California, the 2014 SCOTUS decision that ruled warrantless searches of cell phones were unconstitutional:
The opinion was written by Roberts with a concurrence by Alito.
Again, presumably, the 2024 court is likely to take an even a dimmer view of the Feds trying to expand their powers and circumvent the 4th Amendment than the 2014 court.
> textualist interpretation of the constitution would likely take a very dim view of the federal government trying to stretch its powers and get around the Fourth Amendment
Scalia was textualist. "Justices Antonin Scalia, Amy Coney Barrett, Clarence Thomas and Neil Gorsuch describe themselves as originalists in scholarly writings and public speeches" [1]. (In several cases, e.g. the application of Sarbanes-Oxley to the January 6th cases, they dismissed a textualist interpretation.)
Textualism would have trouble with this case because phones aren't mentioned in the Constitution. Originalism does better, which explains Riley.
Alternatively, when the Supreme court composition has changed and shown a willingness to view old decisions as bad law, its a great time for a district court to break rank with precedent.
We have a couple decades to shape the country however you want, you don’t have to act like a victim because the justices lied during their confirmation hearings on one specific topic, just bring different cases for other various inconveniences you have.
> But on Wednesday, Judge Nina Morrison in the Eastern District of New York ruled that cellphone searches are a "nonroutine" search, more akin to a strip search than scanning a suitcase or passing a traveler through a metal detector.
Honestly, I would probably rather undergo a strip search than a cellphone scan. There won’t be any incriminating evidence I have forgotten about and everything is done as soon as I leave the room. With a cellphone scan, I have to worry about something that was innocent that I have even forgotten about but may be considered incriminating now. In addition, they would now have enough information for identity theft. Also, I don’t know that is happening with the data or if any back doors have been installed.
When that came up with nothing they appeared in front of a judge claiming drug baggies were sticking out of my ass, then I was imprisoned, printed, and loaded up in a prisoner van and dragged to several hospitals while they tried to convince doctors to X-ray or invasively search me.
It sounds so insane, and gross, people usually don't believe it.
I was sent the medical bills when finished. The search is the beginning, after comes years of being chased by debt collectors.
This is one of those things you should talk to a lawyer about, and possibly, if you want to and your lawyer approves, the media.
Being invasively searched for drugs due to false testimony by officers, where it was proven that you were free of contraband, but then being billed for the process, is fucked up and a clear violation of your constitutional rights.
US v. Cano: "we hold that manual searches of cell phones at the border are reasonable without individualized suspicion, whereas the forensic examination of a cell phone requires a showing of reasonable suspicion". Neither "without individualized suspicion" nor "a showing of reasonable suspicion" are a warrant requirement. This is not a court "ruling against warantless border searches".
US v Aigbekaen is an individualized suspicion requirement, not a warrant requirement: "individualized suspicion of an offense that bears some nexus to the border search exception’s purposes of protecting national security, collecting duties, blocking the entry of unwanted persons, or disrupting efforts to export or import contraband."
I think another problem is that such suspicion/probable cause is often "made up", or in other words, people often disagree on someone's quick judgement call where it wasn't obvious to everyone.
The article does not seem to cover that question. From previous discussions I have the impression that foreigners are not granted any constitutional rights at the border or even when in their home country (their communication can be freely intercepted). So the US is nowadays on my personal list of totalitarian states that I don't want to travel to. They definitely have better legislation and courts than Russia or North Korea, but in the end the decision is, as a foreigner you don't have those rights, the government does what it sees fit.
The US absolutely does grant full constitutional rights to noncitizens who are physically inside the US, excepting only those inherently tied to US citizenship. (Those are surprisingly few - there is actually not even an explicit right to vote stated in the US constitution, but certainly it is constitutional that noncitizens are not generally allowed to vote).
At border checkpoints on US soil, the border search exception to the Fourth Amendment which this court is interpreting narrowly does not differ based on citizenship. I think there is even no difference about the Fifth Amendment protection against self-incrimination in that context.
Of course, noncitizens do not have the same constitutional right to enter the US as do citizens, which is the same rule that most countries use. So refusing to cooperate at the border could block a foreigner from entering the US in ways it can’t for a citizen.
It is unfortunately also true that US constitutional rights only apply to noncitizens who are physically outside the US in very particular situations and not most of the time. (US preclearance border checkpoints on foreign soil count as physically outside the US for this purpose.) By contrast, US citizens at least in theory fully retain those protections with respect to US government actions wherever they are in the world when the US government ought to know they’re dealing with a US citizen.
Something to keep in mind.. If you're traveling to Canada or Aus, then your 4th don't count. Same with all the other amendments.
And with the data sharing, there's nothing stopping Canada from sharing with the US.
True, but Canada does have its own explicitly entrenched and judicially enforceable constitutional rights document in the form of the Canadian Charter of Rights and Freedoms, which in section 8 provides protection against unreasonable search and seizure. Naturally the US and Canadian judicial systems don’t always interpret these protections to have identical boundaries, but broadly speaking they are similar.
>And if it does, is it reason to refuse someone? I.e. can they refuse an L1B visa holder entry because he/she doesn't allow them to search the phone?
Yes. Only green card holders (some limitations apply) and US Citizens have right to enter the United States. Everyone else can be denied entry by CBP and even if you have obtained a visa, CBP can cancel it.
So these criminals that have been performing the illegal searches. The next step is they'll be charged with false imprisonment, extortion, and conspiracy, right?
Oh, okay then, how about at least for deprivation of civil rights under the color of law?
Well then, what about monetary damages for the people whose data was copied, devices were stolen or could no longer be trusted, wasted time and missed flights, costs of retaining an attorney to defend themselves, etc?
Oh, the result is that the criminals that did this are just going to have to pause for a little bit until some attorney working for their agency, whom we are also paying for, writes a new justification with slightly tweaked reasoning, at which time the perps will resume?!?
Sovereign immunity strikes again. None of these terrible authoritarian dynamics are ever going to be reigned in until sovereign immunity is severely curtailed. At the very least we need civil liability that compensates the victims out of the department's budget. Ideally there should be criminal liability, either on the individuals performing the illegal actions, or if they're following written policy then whomever instituted that policy.
And if you think this sounds extreme, then note it's still more lenient than what the rest of us get! Security guards, private investigators, and even just individuals defending themselves still manage to operate while staying well away from the edges of the law. And in general, staying away from the edges of the law is the exact dynamic we want for those involved in physically coercing others.
The law, despite being unconstitutional, allowed this, so you can't go back and arrest people who weren't breaking the law at the time.
What you can do is track back every arrest that resulted from one of these searches, and ask for all charges and convictions to be vacated/overturned because the evidence was collected in an unconstitutional way.
I'm more interested in damage control than revenge on this one.
There is an asymmetry in your reasoning that I don't doubt is in many court decisions due to sovereign immunity, but need not be universal. If the law is declared unconstitutional, then that law was unconstitutional the whole time. Therefore there was no legal basis for the people-who-happened-to-be-employed-by-the-government to do what they did. And I'm pretty sure the laws against false imprisonment and extortion weren't passed yesterday.
I don't know, it depends on their mood I guess? I'm unaware of the U.S. legal system specifically, but the Court of Justice of the European Union invalidated laws retroactively in the past. This isn't exclusive to EU laws either. My home country did the same thing with national laws. So I don't know, maybe the US can do that as well, but people just assume the US can't because it feels intuitive for it to be that way?
The states might apply this differently, I'm out of touch, but under fed law, I think you can only apply new SCOTUS rulings to criminal cases that are still not "final." (e.g. haven't gone to trial, or haven't completed their course through all 11 or 13 stages of appellate review.. however many there are these days inc state + fed + habeas)
There are ... some exceptions. Pardons can be granted (presidential or gubernatorial) for those convicted of specific violations, or under procedures later discredited. This doesn't of itself provide the ability to prosecute bad cops / bad prosecutors, but does at least undo some of the damage.
E.g., President Biden has given broad pardons for marijuana possession under US and D.C. (administered by the Federal government) law:
This doesn't include state convictions for drugs possession (the vast majority of such convictions) but does signal to states which direction the Federal government is leaning.
Is there a law that explicitly allows these unconstitutional searches? If so then perhaps what is needed is consequences for the politicians that enact unconstitutional laws. Just letting the government fuck over people and then go "oops no hard feelings?" when found to be acting against the rules they are bound to is not a good solution.
Well, it's more complicated than that under federal law. If there is no completely specific SCOTUS ruling on the issue then it comes down to whether there is a published opinion by the Circuit Court in the government official's area. If there is, then they are expected to have read it and taken it into account when they acted. If they violate that opinion then they are liable.
You can only be civil liable for these sorts of violations. I think to criminally liable under a constitutional violation you need an act of violence? e.g. like the Floyd case?
Sure, you're talking about legally what is, due to the concepts of sovereign immunity and more specifically qualified immunity. My point is that the concept of sovereign immunity itself needs to be drastically curtailed (to the point that qualified immunity would be moot).
They can demand, and you can refuse. However if you have Face ID or other biometric measures, they can (legally) force your finger onto the sensor or hold the phone up to your face to unlock it for their needs.
Passwords are personal data, faces and fingerprints are not, apparently.
>Passwords are personal data, faces and fingerprints are not, apparently.
The rulings you're referring to are based on the Fifth Amendment. They don't involve the privacy rights of the Fourth Amendment. Rather, they treat the act of revealing your password as testimonial: if you say "my password is hunter2", you are testifying; and the Fifth Amendment says you cannot be forced to testify against yourself; so you cannot be forced to reveal your password.
You can scan your fingerprint or face without speaking a word, so those acts are not testimonial, and forcing you to do them would not implicate the Fifth Amendment. Similarly, brute forcing your password, or searching for it written down in your notes, would not implicate the Fifth Amendment.
The biggest thing is to set your device up on arrival to be powered OFF. Most of Cellebrite (and other security vendors) solutions rely on the phone having been unlocked once since first poweron (or "AFU").
> Judge Nina Morrison in the Eastern District of New York ruled that cellphone searches are a "nonroutine" search, more akin to a strip search than scanning a suitcase or passing a traveler through a metal detector.
Does a strip search also require a warrant though?
Sure but I learned that hard way when I got the sealed probable cause statement of my warrant, the detective claimed an unnamed officer claimed an unnamed dog alerted and that set off that intermediate standard.
So in practice there is nothing needed. Because it is impossible to challenge 3rd order interspecies anonymous hearsay.
Readit News
In the federal court system, District Court decisions are not binding precedent. Circuit Court decisions bind the District Courts in their circuit, and Supreme Court decisions bind all lower courts.
This District Court is in the Second Circuit. Another District Court in the same Circuit made a similar decision in US v. Smith, but the Second Circuit Court has not yet ruled on warrantless border searches of cell phones. Several other Circuit Courts have, however, and their rulings were all opposite of this one: the First Circuit in Alasaad v. Mayorkas; the Fifth Circuit in US v. Castillo; the Seventh Circuit in US v. Wanjiku; and the Ninth Circuit in US v. Cano.
In short: this decision is not binding precedent, and a substantial amount of binding precedent exists in the opposite direction within other circuits.
(Credit for case law information to: https://www.wilmerhale.com/insights/client-alerts/20231115-o...)
When there is a "circuit split" like this, with different appellate courts going in opposite directions you are almost 100% guaranteed SCOTUS has to step in to fix it.
I don't know the outcome of this, as I've not studied border searches in years, but while SCOTUS went in the favor of defendants on prior search cases (e.g. Riley v. California, 573 U.S. 373, cellphone searches on person during arrest; Carpenter v. United States, 585 U.S. ___ (2018), cellphone GPS logs from carrier; United States v. Jones, 565 U.S. 400 (2012), GPS attached to car), the court has changed to the right, which generally (but not always) means less defendant-friendly, more government-friendly.
If I had to wager, SCOTUS will uphold warrantless border searches.
IIRC pretty much 99% of state and fed courts had ruled against the warrant requirement for GPS tracking until it hit SCOTUS and they went the opposite direction (just): https://en.wikipedia.org/wiki/United_States_v._Jones_(2012)
https://supreme.justia.com/cases/federal/us/573/373/
The opinion was written by Roberts with a concurrence by Alito.
Again, presumably, the 2024 court is likely to take an even a dimmer view of the Feds trying to expand their powers and circumvent the 4th Amendment than the 2014 court.
Scalia was textualist. "Justices Antonin Scalia, Amy Coney Barrett, Clarence Thomas and Neil Gorsuch describe themselves as originalists in scholarly writings and public speeches" [1]. (In several cases, e.g. the application of Sarbanes-Oxley to the January 6th cases, they dismissed a textualist interpretation.)
Textualism would have trouble with this case because phones aren't mentioned in the Constitution. Originalism does better, which explains Riley.
[1] https://en.wikipedia.org/wiki/Originalism
We have a couple decades to shape the country however you want, you don’t have to act like a victim because the justices lied during their confirmation hearings on one specific topic, just bring different cases for other various inconveniences you have.
Honestly, I would probably rather undergo a strip search than a cellphone scan. There won’t be any incriminating evidence I have forgotten about and everything is done as soon as I leave the room. With a cellphone scan, I have to worry about something that was innocent that I have even forgotten about but may be considered incriminating now. In addition, they would now have enough information for identity theft. Also, I don’t know that is happening with the data or if any back doors have been installed.
I was strip searched
When that came up with nothing they appeared in front of a judge claiming drug baggies were sticking out of my ass, then I was imprisoned, printed, and loaded up in a prisoner van and dragged to several hospitals while they tried to convince doctors to X-ray or invasively search me.
It sounds so insane, and gross, people usually don't believe it.
I was sent the medical bills when finished. The search is the beginning, after comes years of being chased by debt collectors.
This is one of those things you should talk to a lawyer about, and possibly, if you want to and your lawyer approves, the media.
Being invasively searched for drugs due to false testimony by officers, where it was proven that you were free of contraband, but then being billed for the process, is fucked up and a clear violation of your constitutional rights.
Dead Comment
Indeed, this same federal court has already ruled against warrantless phone searches in US v Smith (SDNY 2023).
US v Aigbekaen is an individualized suspicion requirement, not a warrant requirement: "individualized suspicion of an offense that bears some nexus to the border search exception’s purposes of protecting national security, collecting duties, blocking the entry of unwanted persons, or disrupting efforts to export or import contraband."
As it is I wouldn’t be surprised if the government doesn’t appeal to avoid setting a wider precedent.
https://www.aclu.org/know-your-rights/border-zone
Or does it apply to everybody?
And if it does, is it reason to refuse someone? I.e. can they refuse an L1B visa holder entry because he/she doesn't allow them to search the phone?
At border checkpoints on US soil, the border search exception to the Fourth Amendment which this court is interpreting narrowly does not differ based on citizenship. I think there is even no difference about the Fifth Amendment protection against self-incrimination in that context.
Of course, noncitizens do not have the same constitutional right to enter the US as do citizens, which is the same rule that most countries use. So refusing to cooperate at the border could block a foreigner from entering the US in ways it can’t for a citizen.
It is unfortunately also true that US constitutional rights only apply to noncitizens who are physically outside the US in very particular situations and not most of the time. (US preclearance border checkpoints on foreign soil count as physically outside the US for this purpose.) By contrast, US citizens at least in theory fully retain those protections with respect to US government actions wherever they are in the world when the US government ought to know they’re dealing with a US citizen.
I've been asked for my phone at customs, and I just hand over the "nokia". They can play snake all the like.
Yes. Only green card holders (some limitations apply) and US Citizens have right to enter the United States. Everyone else can be denied entry by CBP and even if you have obtained a visa, CBP can cancel it.
Oh, okay then, how about at least for deprivation of civil rights under the color of law?
Well then, what about monetary damages for the people whose data was copied, devices were stolen or could no longer be trusted, wasted time and missed flights, costs of retaining an attorney to defend themselves, etc?
Oh, the result is that the criminals that did this are just going to have to pause for a little bit until some attorney working for their agency, whom we are also paying for, writes a new justification with slightly tweaked reasoning, at which time the perps will resume?!?
Sovereign immunity strikes again. None of these terrible authoritarian dynamics are ever going to be reigned in until sovereign immunity is severely curtailed. At the very least we need civil liability that compensates the victims out of the department's budget. Ideally there should be criminal liability, either on the individuals performing the illegal actions, or if they're following written policy then whomever instituted that policy.
And if you think this sounds extreme, then note it's still more lenient than what the rest of us get! Security guards, private investigators, and even just individuals defending themselves still manage to operate while staying well away from the edges of the law. And in general, staying away from the edges of the law is the exact dynamic we want for those involved in physically coercing others.
The law, despite being unconstitutional, allowed this, so you can't go back and arrest people who weren't breaking the law at the time.
What you can do is track back every arrest that resulted from one of these searches, and ask for all charges and convictions to be vacated/overturned because the evidence was collected in an unconstitutional way.
I'm more interested in damage control than revenge on this one.
I don't know, it depends on their mood I guess? I'm unaware of the U.S. legal system specifically, but the Court of Justice of the European Union invalidated laws retroactively in the past. This isn't exclusive to EU laws either. My home country did the same thing with national laws. So I don't know, maybe the US can do that as well, but people just assume the US can't because it feels intuitive for it to be that way?
Deleted Comment
There are ... some exceptions. Pardons can be granted (presidential or gubernatorial) for those convicted of specific violations, or under procedures later discredited. This doesn't of itself provide the ability to prosecute bad cops / bad prosecutors, but does at least undo some of the damage.
E.g., President Biden has given broad pardons for marijuana possession under US and D.C. (administered by the Federal government) law:
<https://www.npr.org/2023/12/22/1221230390/biden-pardons-clem...>
This doesn't include state convictions for drugs possession (the vast majority of such convictions) but does signal to states which direction the Federal government is leaning.
But your damage control is within reach.
You can only be civil liable for these sorts of violations. I think to criminally liable under a constitutional violation you need an act of violence? e.g. like the Floyd case?
Dead Comment
Passwords are personal data, faces and fingerprints are not, apparently.
The rulings you're referring to are based on the Fifth Amendment. They don't involve the privacy rights of the Fourth Amendment. Rather, they treat the act of revealing your password as testimonial: if you say "my password is hunter2", you are testifying; and the Fifth Amendment says you cannot be forced to testify against yourself; so you cannot be forced to reveal your password.
You can scan your fingerprint or face without speaking a word, so those acts are not testimonial, and forcing you to do them would not implicate the Fifth Amendment. Similarly, brute forcing your password, or searching for it written down in your notes, would not implicate the Fifth Amendment.
What's the alternative? The guy paid $1000+ just to get there and spent 3+ hours at customs. Refusing is basically saying "ok I fly back home"
Why Android? Try GNU/Linux with SXMo instead: https://news.ycombinator.com/item?id=39155103
https://cellebrite.com/en/advanced-services/
The biggest thing is to set your device up on arrival to be powered OFF. Most of Cellebrite (and other security vendors) solutions rely on the phone having been unlocked once since first poweron (or "AFU").
Does a strip search also require a warrant though?
https://en.wikipedia.org/wiki/Border_search_exception#Search...
So in practice there is nothing needed. Because it is impossible to challenge 3rd order interspecies anonymous hearsay.